Harrington, Vera, Docket No. 234

Docket No.: 234

IN THE MATTER OF VERA C. HARRINGTON

Harvey F. Rowe, Jr., Counsel for Respondent Vera C. Harrington

Commissioners: Diver, Ch.; Brickman, Burns, McLaugilin, Mulligan

Date: January 12, 1984

DECISION AND ORDER

I. Procedural History

The Petitioner filed an Order to Show Cause on September 27,1983 alleging that the Respondent, Vera C. Harrington, was in violation of M.G.L. c. 268A, s.20[1] by serving as an elected member of the Swampscott Board of Assessors (Board) and the chief clerk for the Board. In lieu of an adjudicatory hearing, the Petitioner and Respondent stipulated to the relevant facts, submitted briefs, and orally argued before the Commission on December 13, 1983. In rendering this Decision and Order, each member of the Commission has reviewed the evidence and arguments presented by the parties.

II. Findings

A. Jurisdiction

The parties have stipulated that the Respondent, in her Capacity as an elected Board member, is a municipal employee within the meaning of M.G.L. c. 268A, s.1(g).[2] The board is a municipal agency within the meaning of M.G.L. c. 268A, s.1(f).[3]

B. Findings of Fact

1. The Respondent has been employed by the Board since 1961 as the chief clerk, a full-time position with a current annual salary of $17,000.

2. The Respondent is, and has been since 1977, an elected member of the Board and currently earns $1,000 a year in that position.

3. On October 19,1982, the Commission advised the Respondent through a Compliance Letter that, as a municipal employee, her financial interest in her employment contract as the chief clerk to the Board was prohibited by M.G.L. c. 268A, s.20. The Commission informed her that the violation could be cured if: 1) the selectmen designated members of the Board as "special municipal employees," as defined in s.1(n) of M.G.L. c. 268A and granted her an exemption under s.20(d); or 2) she resigned one of her positions.

4. On November 18, 1982, the Swampscott board of Selectmen voted to designate temporarily the members of the Board as "special municipal employees" as defined in s.1(n) of M.G.L. c. 268A, allowing Harrington to qualify for the exemption to the restrictions of M.G.L. c. 2268A, s.20 set forth in s.20(d).[4]

5. On May 12, 1983, the Board of Selectmen voted to discontinue the designation of Board members as "special municipal employees." [5]

6. Notwithstanding the elimination of her status as a special municipal employee, the Respondent has maintained both her chief clerk and Board member positions since May 12, 1983.

III. Decision

By maintaining her chief clerk position with the Board while also serving as a Board member, the Respondent has violated, and continues to violate G.L. c. 268A. s.20. As a municipal employee, the Respondent is prohibited by s.20 from having a financial interest, directly or indirectly, in a contract made by a municipal agency of the same town. The Respondent's employment contract as the chief clerk to the Board constitutes a prohibited financial interest under s.20. It is well-established that the scope of the contractual financial interests prohibited under G.L. c. 268A includes contracts for personal services as well as for goods. In the Matter of Henry M. Doherty, 1982 Ethics Commission 115, 116; EC-COI-80-118, 80-97;

Page 166

Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U. Law Rev. 299, 368, 372(1965). Additionally, the Respondent has a financial interest in the collective bargaining agreement which covers a bargaining unit in which she is included as chief clerk of the Board.

While it may be true, as the Respondent suggests, that a purpose of s.20 was to prevent employees from abusing their public positions to secure multiple municipal contracts, the plain language establishes a preventive rule which assumes that any employee is in a position to influence the awarding of contracts. "Because it is impossible to articulate a standard by which one can distinguish between employees in a position to influence and those who are not, all will be treated as though they have influence." Buss, supra 374. Thus, even though the Respondent's contract may have preceded her election as a Board member, the statute recognizes that, once elected as a Board member, the Respondent is in a position to influence the maintenance or renewal of her employment contract.

None of the exemptions under s.20 apply to the Respondent. In particular, she does not qualify for the exemption under s.20(d) because she is no longer a special municipal employee.

The Board of Selectmen did not exceed its authority by revoking the classification of the position of Board member as a special municipal employee. The classification process, by definition, involves a judgment as to the needs of a governmental body at any given time and is not irrevocable. The judgment as to whether to relax the requirements of G.L. c. 268A rests with the Board of Selectmen, and is subject to reevaluation as circulnstances change. See, Buss, supra, 316-318. Nor did the voters implicitly condone the Respondent's dual employment status by reelecting her as a member of the Board. The statute prescribes the steps which a municipal employee must follow to hold a financial interest in a second municipal contract. There is no provision in s.20 for overriding these steps by implication. Nor can such a result reasonably follow from the defeat by the voters of the referendum which would have permitted the Respondent to continue as a special municipal employee.

IV. Penalty

Following a finding of a violation of G.L. c. 268A, the Commission is authorized by M.G.L. c. 268B, s.4(d) to issue an order requiring the violator to cease and desist from such violation and requiring the violator to pay a civil penalty of not more than $2000 for each violation of M.G.L. c. 268A. This is not the first occasion which the Commission has applied M.G.L. c. 268A to employment contracts, and the Respondent has been aware since October 19, 1982 of the consequences under s.20 of her retaining her chief clerk position while not having special municipal employee status as a Board member. Accordingly, the Commission orders the following sanctions to reflect the seriousness with which it views the Respondent's continuing violation of the statute and her disregard of prior determinations by the Commission.

V. Order

Pursuant to its authority under M.G.L. c. 268B, s.4, the Commission orders the Respondent to:

1. Cease and Desist from violating M.G.L. c. 268A, s.20 by either resigning as a Board member or terminating her financial interest in her employment contract as the chief clerk to the Board within fourteen (14) days of notice of this Decision and Order, and

2. Pay three hundred dollars ($300) to the Commission as a civil penalty for violating M.G.L. c. 268A, s.20. In addition, if the Respondent maintains her prohibited financial interest and fails to comply with paragraph one of this order, the Respondent is further ordered to pay the Commission a daily civil penalty of fifty dollars for each day that the Respondent continues to be in violation of s.20 up to a maximum of seventeen hundred dollars ($1700).

---------------

[1] M.C. L. c. 268A, s.20 prohibits a municipal employee from having a financial interest, directly or indirectly, in a contract made by a municipal agency of the same town, in which the town is an interested party, in which financial interest the employee has knowledge or reason to know.

[2] "Municipal employee" is defined as "a person performing services for or holding an office, position, employment or membership in a municipal agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis, but excluding (1) elected members of a town meeting and (2) members of a charter commission established under Article LXXXIX of the Amendments to the Constitution." M.G.L. c. 268A, s.1(g).

[3] "Municipal agency" is defined as "any department or office of a city or town government and any council, division, board, bureau, commission, institution, tribunal or other instrumentality thereof or thereunder." M.G.L. c. 268A, s.1(f).

[4] Section 20 does not apply "(d) to a special municipal employee who files with the clerk of the town a statement making full disclosure of his interest and the interests of his immediate family in the contract, if the board of selectmen approve the exemption of his interest from this section."

[5] Although the reasons for the "de-designation" are not included in the record, the parties suggested in their briefs and oral arguments that the voters at the annual town meeting in April, 1983 rejected an advisory referendum question which asked whether the Board of Selectmen should continue to grant special municipal employee status to Harrington.